Thomaselli v. Commissioner Of Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

MARCO RAFIEL THOMASELLI,

Plaintiff,

v. Civil Action No.: 1:18-cv-105

(Kleeh)

NANCY A. BERRYHILL, Acting

Commissioner of Social Security,

Defendant.

MEMORANDUM OPINION AND ORDER

AFFIRMING AND ADOPTING THE REPORT AND

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION AND BACKGROUND

The Plaintiff, by counsel, seeks judicial review of the

Defendant’s decision to deny his claims for disability insurance

benefits (“DIB”) under Title II of the Social Security Act and

supplemental security income (“SSI”) under Title XVI of the Social

Security AcT [Dkt. No 1]. Plaintiff applied for DIB and SSI on July

24, 2012, with a date of last insured (“DLI”) of March 31, 2012 [Dkt.

No. 13-2 at 13]. His application was denied on October 19, 2012,

without subsequent appeal [Id.]. On July 11, 2014, Plaintiff made

protective reapplication for benefits, and alleged ongoing

disability since December 1, 2009, due to Crohn’s disease, asthma,

high blood pressure, chronic obstructive pulmonary disease (“COPD”),

and “mental health” [Id.]. His reapplication for DIB was denied on

res judicata grounds, and his remaining reapplication for SSI was

denied initially and again upon reconsideration [Id.].

The Plaintiff requested and the ALJ, Brian Crockett, held a

hearing on March 7, 2017 [Dkt. No. 13-2 at 13]. At the hearing,

Plaintiff moved to amend his date of disability onset from December

1, 2009, to January 1, 2013 [Id.]. However, because Plaintiff could

not receive SSI until August 2014 (the month following the month

during which the relevant underlying application was filed),

Plaintiff’s disability status was only determined after the July 11,

2014, protective filing date of his most recent application for

benefits [Id. at 13-14]. The ALJ determined, and Plaintiff concedes

in his brief, that the relevant period on his SSI claim is August 1,

2014, through May 3, 2017 [Id.; Dkt. No. 18 at 4; Dkt. No. 16-1 at

2]. On May 3, 2017, the ALJ issued an unfavorable decision to the

Plaintiff, and the Plaintiff appealed [Id.]. The Appeals Council

denied the Plaintiff’s request for review on March 20, 2018 [Dkt.

No. 13-2 at 2], and the Plaintiff timely brought his claim before

this Court on May 2, 2018 [Dkt. No. 1].

In issuing his decision, the ALJ used a five-step evaluation

process pursuant to 20 C.F.R. §§ 404.1420 and 416.920. Using that

process, the ALJ made the following findings: (1) the Plaintiff has

not engaged in “substantial gainful activity” since July 11, 2014,

the protective filing date of his most recent application for SSI;

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(2) the Plaintiff had the following severe impairments: asthma/COPD

and Crohn’s disease; (3) none of the Plaintiff’s impairments met or

medically equaled the severity of any impairment listed in Appendix

1, Subpart P, Regulation No. 4 (20 C.F.R. §§ 416.920(d), 416.925 and

416.926); (4) the Plaintiff is capable of performing work activity

that requires no more than a “medium” level of physical exertion,

and involves no concentrated exposure to temperature extremes,

vibration, pulmonary irritants or hazards; and (5) “[c]onsidering

the claimant’s age, level of education, work experience and

prescribed residual functional capacity, he has remained capable

throughout the period at issue of performing jobs that exist in

significant numbers within the national economy” [Dkt. No. 13-2 at

16-24]. Accordingly, the ALJ found that Plaintiff did not have a

disability as defined under the Social Security Act (“SSA”).

By standing order of the Court, this matter was referred to

United States Magistrate Judge Robert W. Trumble for proposed

findings of fact and a recommended disposition. Thereafter,

Plaintiff and Defendant both filed motions for summary judgment [Dkt.

Nos. 16, 17] and supporting memoranda. The Plaintiff’s motion for

summary judgment argues that the ALJ’s decision is not supported by

substantial evidence.1 Plaintiff contends that the ALJ (1) failed

1 In the Stipulation of Facts that Plaintiff included in his brief, Plaintiff

references evidence that was not presented to or considered by the ALJ [Dkt. No.

16-1 at 5-6]. The Commissioner argues that the Court cannot consider this evidence

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to properly follow the treating physician rule when he assigned

little weight to the opinion of his treating gastroenterologist, and

(2) failed to properly consider Plaintiff’s description of his

symptoms which prevent him from being able to attend a job on a

regular basis or stay on task while on the job [Dkt. No. 16-1]. The

Plaintiff requests that the Court reverse the ALJ’s decision and

direct the SSA to make a finding of disabled as of the date of August

1, 2014 [Id. at 13-14]. In the alternative, the Plaintiff requests

that the Court reverse the ALJ’s decision and remand the case for

further administrative proceedings [Id.].

The Defendant’s motion for summary judgment argues that the ALJ

applied the correct legal standard and the decision is supported by

substantial evidence. Specifically, the Defendant argues that (1)

the ALJ provided well-supported reasons for the weight he accorded

the opinions of Amandeep Purewal, M.D., Plaintiff’s treating

gastroenterologist, and (2) the ALJ sufficiently articulated the

reasons for his determination that Plaintiff was not entirely

because it was not before the ALJ [Dkt. No. 18 at 3, n.1]. The same evidence was

presented by Plaintiff to the Appeals Council, which determined that it did not

show a reasonable probability that it would change the outcome of the decision

[Dkt. No. 13-2 at 2](stating that “[y]ou submitted medical records from Weirton

Medical Center and Amandeep Purewal, M.D., dated April 1, 2016 to January 18, 2017

(21 pages) and Weirton Medical Center, dated December 21, 2016 to April 17, 2017

(75 pages). We find this evidence does not show a reasonable probability that it

would change the outcome of the decision. We did not consider and exhibit this

evidence.”). Plaintiff did not argue that this finding was in error, nor has

Plaintiff argued that this Court should consider evidence not presented to the

ALJ. Accordingly, this evidence will not be considered [Dkt. No. 20 at 13,n.2;

Dkt. No. 13-3 at 30-103; Dkt. No. 13-3 at 133-53].

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persuasive concerning the limiting effects of Crohn’s disease

symptoms [Dkt. No. 18]. Defendant requests that the Court affirm

the ALJ’s decision [Id.].

The magistrate judge filed his Report and Recommendation (R&R)

on January 24, 2019, concluding that the ALJ made no legal errors

and that substantial evidence supported the ALJ’s decision [Dkt. No.

20]. The R&R recommends that Plaintiff’s Motion for Summary Judgment

[Dkt. No. 16] be denied, Defendant’s Motion for Summary Judgment

[Dkt. No. 17] be granted, and that this matter [Dkt. No. 1] be

dismissed with prejudice. Plaintiff timely filed objections2 to the

R&R on February 7, 2019 [Dkt. No. 21]. Defendant filed her response

to those objections on February 19, 2019 [Dkt. No. 22].

II. APPLICABLE LAW

A. Standard of Review

The Court is not required to review, under a de novo or any

other standard, the factual or legal conclusions of the magistrate

judge as to those portions of the findings or recommendations to

which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150

(1985). In addition, this Court need not conduct a de novo review

when a party “makes general and conclusory objections that do not

2 Plaintiff’s objections [Dkt. No. 21] are nearly identical to Plaintiff’s

arguments in the Memorandum in Support of Motion for Summary Judgment [Dkt. No.

16-1].

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direct the Court to a specific error” in the magistrate judge’s

recommendation. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct

a de novo review of any portion of the magistrate judge’s

recommendation to which objection is timely made. As to those

portions of a recommendation to which no objection is made, a

magistrate judge’s findings and recommendation will be upheld unless

they are clearly erroneous.

B. Judicial Review of an ALJ Decision

Although the Court will review the magistrate judge’s R&R under

a de novo standard of review, this Court’s review of the underlying

ALJ’s decision is limited. See Smith v. Schweker, 795 F.2d 343, 345

(4th Cir. 1986). A “reviewing court must uphold the determination

when an ALJ has applied correct legal standards and the ALJ’s factual

findings are supported by substantial evidence.” Brown v. Comm’r

Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017)(citation and

internal quotation marks omitted). Pursuant to 42 U.S.C. § 405(g),

“[t]he findings of the Commissioner of Social Security as to any

fact, if supported by substantial evidence, shall be conclusive.”

See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)(“A factual

finding by the ALJ is not binding if it was reached by means of an

improper standard or misapplication of the law.”). The standard for

substantial evidence is “more than a mere scintilla. It means

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relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971)(citation omitted); Thomas v. Celebrezze, 331 F.2d 541, 543

(4th Cir. 1964)(“[s]ubstantial evidence has been defined innumerable

times as more than a scintilla, but less than a preponderance”).

When analyzing whether the ALJ’s decision was supported by

substantial evidence, this Court must determine whether the ALJ

“consider[ed] all relevant evidence.” Sterling Smokeless Coal Co.

v. Akers, 131 F.3d 438, 439 (4th Cir. 1997). “In reviewing for

substantial evidence, [the court should] not undertake to reweigh

conflicting evidence, make credibility determinations, or substitute

[its] judgment for that of the Secretary.” Craig v. Chater, 76 F.3d

585, 589 (4th Cir. 1996). If “conflicting evidence allows reasonable

minds to differ as to whether a claimant is disabled,” the Court

must defer to the Commissioner’s decision. Id.(citing Walker v.

Bowen, 834 F.2d 635, 640 (7th Cir. 1987)); see also Hancock v.

Astrue, 667 F.3d 470, 472 (4th Cir. 2012)(“Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

disabled, the responsibility for that decision falls on the ALJ.”).

C. Five-Step Evaluation Process

The Plaintiff bears the burden of proving to the Commissioner

that she is disabled within the meaning of the SSA. 42 U.S.C. §

423(d)(5); English v. Shalala, 10 F.3d 1080, 1082 (4th Cir. 1993).

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When determining whether an individual is disabled, the ALJ is

directed to use the following five-step sequential process:

i) At the first step, we consider your work activity, if

any. If you are doing substantial gainful activity,

we will find that you are not disabled. (See

paragraph (b) of this section.)

ii) At the second step, we consider the medical severity

of our impairment(s). If you do not have a severe

medically determinable physical or mental impairment

that meets the duration requirement in § 404.1509, or

a combination of impairments that is severe and meets

the duration requirement, we will find that you are

not disabled. (See paragraph (c) of this section.)

iii) At the third step, we also consider the medical

severity of your impairment(s). If you have an

impairment(s) that meets or equals one of our

listings in appendix 1 of this subpart and meets the

duration requirement, we will find that you are

disabled. (See paragraph (d) of this section.)

iv) At the fourth step, we consider our assessment of

your residual functional capacity and your past

relevant work. If you can still do your past relevant

work, we will find that you are not disabled. (See

paragraphs (f) and (h) of this section and §

404,1560(b)).

v) At the fifth and last step, we consider our assessment

of your residual functional capacity and your age,

education, and work experience to see if you can make

an adjustment to other work. If you can make an

adjustment to other work, we will find that you are

not disabled. If you cannot make an adjustment to

other work, we will find that you are disabled. (See

paragraphs (g) and (h) of this section and §

404.1560(c)).

See 20 C.F.R. § 404.1520.

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D. Assessment of Medical Opinions

The ALJ is directed to use all relevant medical and other

evidence when assessing an individual’s RFC. See 20 C.F.R. §

404.1545. This includes evidence from medical examinations,

opinions from medical sources, and descriptions and statements from

the applicant regarding the applicant’s abilities. Id. The SSA

directs the ALJ to consider all medical opinions in its RFC

determination. Id. Under 20 C.F.R. § 404.1527, the ALJ is directed

to assess opinions as follows:

How we consider medical opinions. In determining whether

you are disabled, we will always consider the medical

opinions in your case record together with the rest of the

relevant evidence we receive.

How we weigh medical opinions. Regardless of its source,

we will evaluate every medical opinion we receive. Unless

we give a treating source’s opinion controlling weight

under paragraph (c)(2) of this section, we consider all of

the following factors in deciding the weight we give to

any medical opinion.

(1) Examining relationship. Generally, we give more

weight to the opinion of a source who has

examined you than to the opinion of a source who

has not examined you.

(2) Treatment relationship. Generally, we give more

weight to opinions from your treating sources,

since these sources are likely to be the medical

professionals most able to provide a detailed,

longitudinal picture of your picture of your

medical impairment(s) and may bring a unique

perspective to the medical evidence that cannot

be obtained from the objective medical findings

alone or from reports of individual

examinations, such as consultive examinations or

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brief hospitalizations. If we find that a

treating source’s opinion on the issue(s) of the

nature and severity of your impairment(s) is

well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence

in your case record, we will give it controlling

weight. When we do not give the treating

source’s opinion controlling weight, we apply

the factors listed in paragraphs (c)(2)(i) and

(c)(2)(ii) of this section, as well as the

factors in paragraphs (c)(3) through (c)(6) of

this section in determining the weight to give

the opinion. We will always give good reasons

in our notice of determination or decision for

the weight we give your treating source’s

opinion.

(i) Length of the treatment relationship and

the frequency of examination. Generally,

the longer a treating source has treated

you and the more times you have been seen

by a treating source, the more weight we

will give to the source’s medical opinion.

When the treating source has seen you a

number of times and long enough to have

obtained a logintudinal picture of your

impairment, we will give the source’s

opinion more weight than we would give it

if it were from a nontreating source.

(ii) Nature and extent of the treatment

relationship. Generally, the more

knowledge a treating source has about your

impairment(s) the more weight we will give

to the source’s medical opinion. We will

look at the treatment the source has

provided and at the kinds and extent of the

examinations and testing the source has

performed or ordered from specialists and

independent laboratories…. When the

treating source has reasonable knowledge of

your impairment(s), we will give the

source’s opinion more weight than we would

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give it if it were from a nontreating

source.

(3) Supportability. The more a medical source

presents relevant evidence to support an

opinion, particularly medical signs and

laboratory findings, the more weight we will

give that opinion. The better an explanation a

source provides for an opinion, the more weight

we will give that opinion. Furthermore, because

nonexamining sources have no examining or

treating relationship with you, the weight we

will give their opinions will depend on the

degree to which they provide supporting

explanations for their opinions. We will

evaluate the degree to which these opinions

consider all of the pertinent evidence in your

claim, including opinions of treating and other

examining sources.

(4) Consistency. Generally, the more consistent an

opinion is with the record as a whole, the more

weight we will give to that opinion.

(5) Specialization. We generally give more weight

to the opinion of a specialist about medical

issues related to his or her area of specialty

than to the opinion of a source who is not a

specialist.

(6) Other factors. When we consider how much weight

to give to a medical opinion, we will also

consider any factors you or others bring to our

attention, or of which we are aware, which tend

to support or contradict the opinion….

20 C.F.R. § 1527.

The ALJ must provide reasoning for the weight he assigned to

“all relevant evidence.” See Gordon v. Schweiker, 725 F.2d 231, 235

(4th Cir. 1984)(holding that a court “cannot determine if findings

are supported by substantial evidence unless the Secretary

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explicitly indicates the weight given to all the relevant

evidence.”); See 20 C.F.R. § 404.1520.

E. Assessment of Claimant’s Credibility

The Commissioner has recognized that there are potentially

disabling conditions, such as chronic pain, in which there may be

little objective medical evidence to support the claimant’s

assertion of disability. “[A]n ALJ follows a two-step analysis when

considering a claimant’s subjective statements about impairments and

symptoms.” Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017);

see 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)(2019). The ALJ

first “looks for objective medical evidence showing a condition that

could reasonably produce the alleged symptoms” and then “evaluate[s]

the intensity, persistence, and limiting effects of the claimant’s

symptoms to determine the extent to which they limit the claimant’s

ability to perform basic work activities.” Lewis, 858 F.3d at 866.

The second step “requires the ALJ to assess the credibility of the

claimant’s statements about symptoms and their functional effects.”

Id.

When examining the credibility of an individual’s statements,

the ALJ “must consider the entire case record, including the

objective medical evidence, the individual’s own statements about

symptoms, statements and other information provided by treating or

examining physicians … about the symptoms and how they affect the

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individual, and any other relevant evidence.” See Soc. Sec. Ruling

(“SSR”) 96-7p, 1996 WL 374186, at *1 (July 2, 1996).3 An ALJ’s

assessment of a claimant’s credibility regarding the intensity and

persistence of her symptoms is entitled to great weight when it is

supported by the record. See Hancock, 667 F.3d at 472.

III. DISCUSSION

Plaintiff filed two objections to the R&R: (1) the magistrate

judge wrongly concluded that the ALJ’s assignment of little weight

to Dr. Purewal’s opinion was supported by substantial evidence and

was determined in conformity with the law; and (2) the magistrate

judge wrongly concluded that the ALJ’s credibility assessment of

Plaintiff was supported by substantial evidence [Dkt. No. 21 at 2,

7]. Plaintiff’s objections largely restate the same arguments

presented in his Memorandum in Support of Motion for Summary Judgment

[Dkt. No. 16-1].

A. Plaintiff’s Objection Regarding the Weight Given to Dr.

Purewal’s Opinion Under the Treating Physician Rule

Plaintiff contends that the magistrate judge erred in finding

that substantial evidence supported the little weight accorded the

opinion of Dr. Amandeep Purewal, Plaintiff’s gastroenterologist, and

3 In March 2016, the Commissioner revised SSR 96-7p by eliminating the term

“credibility” from the agency’s policy and by clarifying that “subjective symptom

evaluation is not an examination of an individual’s character.” The agency

continues to evaluate a disability claimant’s symptoms using the two-step process

outlined in the regulations. See SSR 16-3p, 2016 WL 1119029, at *1 (Mar. 16,

2016).

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that the ALJ’s decision was made in conformity with the law [Dkt.

No. 21 at 2]. As explained in the R&R, if a treating source’s

medical opinion on the nature and severity of a Plaintiff’s

impairments is “(1) well-supported by medically acceptable clinical

and laboratory diagnostic techniques and (2) not inconsistent with

the other substantial evidence in the case record, it is given

controlling weight” [Dkt. No. 20 at 9]. While “the testimony of a

treating physician is often accorded greater weight, this ‘treating

physician rule … does not require that the [treating physician’s]

testimony be given controlling weight.’” Criss v. Comm’r of Soc.

Sec., No. 5:16cv86, 2017 WL 2730647, at *3 (N.D. W.Va. June 26,

2017)(emphasis supplied)(quoting Anderson v. Comm’r of Soc. Sec.,

127 F. App’x 96, 97 (4th Cir. 2005)). Where the opinion is not

supported by clinical evidence or if it is inconsistent with other

substantial evidence, “then it should be accorded significantly less

weight.” Thompson v. Astrue, 442 F. App’x 804, 808 (4th Cir.

2011)(quoting Craig v. CHater, 76 F.3d 585, 590 (4th Cir. 1996)).

When a treating source opinion is not given controlling weight,

the ALJ is to apply the six regulatory factors in deciding the weight

to give the medical opinion. 20 C.F.R. § 416.92(c)(2). The factors

include: (1) the examining relationship; (2) the treatment

relationship; (3) supportability; (4) consistency; (5)

specialization; and (6) any other factors that tend to support or

14

contradict the opinion. 20 C.F.R. § 416.927(c). The ALJ need not

specifically list and address each factor in his decision, so long

as sufficient reasons are given for the weight assigned to the

medical opinion. See Pinson v. McMahon, NO. 3:07-1056-PMD-JRM, 2009

WL 763553, at *10 (D.S.C. Mar. 19, 2009)(holding that the ALJ

properly analyzed a treating physician’s medical opinion even though

he did not list the five factors and specifically address each one).

In this matter, as detailed by the magistrate judge, the ALJ

assigned “little weight” to Dr. Purewal’s opinion for several reasons

identified in the decision [Dkt. No. 20 at 11; Dkt. No. 13-2 at 21].

Based on all the reasons identified, the ALJ determined that “[t]he

limitations [Dr. Purewal] ascribed appear based upon [an] incomplete

understanding, and [without an] awareness of all the evidence that

is available to the Administrative Law Judge. Therefore, Dr.

Purewal’s opinion is accorded little weight” [Dkt. No. 13-2 at 22].

The magistrate judge noted the ALJ’s finding that there is little to

no compelling evidence that Plaintiff’s Crohn’s disease worsened

since his first applications were denied in October 2012 [Dkt. No.

20 at 13]. Prior to Plaintiff’s 2016 surgery, Plaintiff’s Crohn’s

disease was relatively stable with medication, with some occasional

flare-ups which is supported by Plaintiff’s proposed Stipulation of

Facts [Id.; Dkt. No. 16-1 at 2-7]. Moreover, while Plaintiff had

several emergency room visits for abdominal pain/Crohn’s flare-ups

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during the first half of 2014, between August 3, 2014, and October

1, 2016, the record before the ALJ shows that Plaintiff had only one

emergency room visit for abdominal pain4 [Dkt. No. 20 at 13; Dkt.

No. 16-1 at 3-4]. The ALJ provided well-supported reasons for the

weight accorded to the opinion of Dr. Amandeep Purewal, and

ultimately determined that they were not supported by the weight of

the evidence [Dkt. No. 13-2 at 20-21].

Plaintiff also argued that the ALJ erred in assigning little

weight to Dr. Purewal’s opinion because the ALJ improperly assigned

great weight to the opinions of state agency consultants, and those

agency consultants did not have all of Plaintiff’s medical evidence

available for review [Dkt. No. 16-1 at 10-11]. Plaintiff’s argument

on this point is without merit. The regulations require the ALJ to

consider the findings of state agency physicians because they are

“highly qualified physicians, psychologists, and other medical

specialists who are also experts in Social Security disability

evaluation.” 20 C.F.R. § 404.1527(e)(2)(i). The ALJ is permitted

to weigh those opinions as she sees fit, so long as an explanation

is provided. 20 C.F.R. § 404.1527(e)(2)(ii). In his memorandum and

objections [Dkt. No. 16-1 at 11; Dkt. No. 21 at 6], Plaintiff

4 As stated, the Court has not considered evidence submitted by Plaintiff as

additional evidence to the Appeals Council that was not presented to and considered

by the ALJ. The Appeals Council determined that it did not show a reasonable

probability that it would change the outcome of the decision [Dkt. No. 13-2 at

2].

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contends that because agency physicians “at most did a record review

of limited medical records and never examined the Plaintiff,” the

ALJ was wrong in giving their opinions great weight.5 The regulations

establish that this argument is fundamentally misplaced because the

ALJ must consider the opinions of state agency doctors. Moreover,

“[a]n ALJ’s determination as to the weight to be assigned to a

medical opinion generally will not be disturbed absent some

indication that the ALJ has dredged up ‘specious inconsistencies’ or

has failed to give a sufficient reason for the weight afforded a

particular opinion.” See Dunn v. Colvin, 607 F. App’x 264, 267 (4th

Cir. 2015)(citations omitted)(quoting Scivally v. Sullivan, 966 F.2d

1070, 1077 (7th Cir. 1992)). Plaintiff offers no such indication.

A treating physician’s opinion is given “controlling weight”

only when that opinion is both “well-supported” by medically

acceptable clinical and laboratory techniques, and “not

inconsistent” with other substantial evidence in the record. 20

5 As the Commissioner correctly observes in her Brief in Support of Her Motion for

Summary Judgment, while a consultative examiner performs an examination of the

claimant, 20 C.F.R. § 416.917, a state agency consultant does not, and instead

reviews the medical records in a claimant’s case record. See 20 C.F.R. §

416.913a(b); [Dkt. No. 18 at 10-11]. Also, the mere passage of time between the

date of a state agency consultant’s opinion and the date of the ALJ’s decision

does not, in and of itself, undermine, or render “stale” the state agency

consultant’s opinion [Dkt. No. 18 at 11]. See Stricker v. Colvin, No. 2:15-15,

2016 WL 543216, at *3 (N.D. W.Va. Feb. 10, 2016); see also Chandler v. Comm’r of

Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2012)(“[B]ecause state agency review precedes

ALJ review, there is always some time lapse between the consultant’s report and

the ALJ hearing and decision. The Social Security regulations impose no limit on

how much time may pass between a report and the ALJ’s decision in reliance on

it.”).

17

C.F.R. § 416.927(c)(2); see Dunn, 607 F. App’x at 267. The ALJ’s

assignment of weight to Dr. Purewal’s opinion was thoughtful and

based on a balance of the evidence. The ALJ also explained his

rationale for assigning little weight to Dr. Purewal’s opinion. See

Smith, 395 F.Supp.2d at 307. As it is not the reviewing court’s

role to reweigh the evidence considered by the ALJ, Johnson, 434

F.3d at 653, the Court finds that the ALJ’s decision concerning the

treating physician rule was in conformity with the law and supported

by substantial evidence in the record. Plaintiff’s objection on

this ground is overruled.

B. Plaintiff’s Objection Regarding the Consideration Given to

Plaintiff’s Description of his Symptoms

Plaintiff argues that the magistrate judge wrongly concluded

that the ALJ’s credibility assessment of Plaintiff was supported by

substantial evidence [Dkt. No. 21 at 7]. Plaintiff contends that,

while the ALJ decision stated that Plaintiff’s testimony concerning

the intensity, duration, and limiting effect of his symptoms was not

fully persuasive, the decision failed to explain how Plaintiff’s

reported symptoms are inconsistent with the evidence [Id.].

Plaintiff argues that his records show that he had to go to the

emergency room on ten occasions and was hospitalized for twenty-nine

days “between the beginning of 2014 and the end of 2016,” and that

this “does not include days the Plaintiff would have missed work

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because he was too symptomatic to leave his home or even his

bathroom” [Id. at 8]. Plaintiff’s argument is not persuasive.

First, Plaintiff concedes that “the ALJ correctly noted that

claimant had no potential eligibility to received [sic] SSI benefits

until August 2014, the month following the month he re-applied for

benefits” [Dkt. No. 16-1 at 2]. Thus, the relevant period at issue

for Plaintiff’s SSI claim is August 1, 2014, through May 3, 2017,

and not the beginning of 2014 or before. Secondly, as the

Commissioner notes in her Brief in Support of Her Motion for Summary

Judgment [Dkt. No. 18 at 4], the record before the ALJ shows that

Plaintiff regularly advised his health care providers that he was

engaging in work activities, often specifically noting that he was

working as an HVAC technician6 [Dkt. No. 18 at 4-5; Dkt. No. 13-2 at

15, 18-21]. Additionally, the medical records relied on by the ALJ

support the conclusion that Plaintiff’s condition and functionality

remained relatively stable with medication prior to his 2016 surgery,

and that many of Plaintiff’s Crohn’s symptoms resolved after that

surgery [Dkt. No. 20 at 13; Dkt. No. 16-1 at 3-4]. Considering the

6 The ALJ determined that that Plaintiff had not definitively engaged in

“substantial gainful activity,” at any time during the relevant period, or since

the July 11, 2014, protective filing date [Dkt. No. 13-2 at 15]. However, the

ALJ concluded that the evidence suggests that Plaintiff worked in the past and

during the period at issue on an unofficial basis (i.e., “off the books” or “under

the table”) [Id.], because he reported work activity to physicians but his reported

earnings were remarkably limited for 2008 ($1,540.00) and 2011 ($72.25) with no

reported earnings in 2009, 2010, 2012, 2013, 2014, 2015 or 2016 [Dkt No. 13-2 at

15, 18-21].

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record as a whole, including Plaintiff’s testimony at hearing, the

ALJ determined that “[t]he evidence indicates that the claimant has

experienced problems related to Crohn’s disease during the period at

issue, but not of any persistent, permanent and totally disabling

severity” [Dkt. No. 13-2 at 20]. He further concluded that “[t]here

is no compelling evidence of any intractable, persistent and totally

disabling constellation of symptoms” and that Plaintiff’s

“reliability as an informant is somewhat suspect” [Id.].

The ALJ’s observations concerning the Plaintiff’s credibility

are given great weight because the ALJ has had the opportunity to

observe the demeanor of the Plaintiff. See Shively, 739 F.2d at

989-90. Additionally, the ALJ assessed Plaintiff’s credibility “in

view of the objective medical and other longitudinal evidence of

record” [Dkt. No. 13-2 at 20]. This Court has held that “[a]n ALJ’s

credibility determinations are ‘virtually unreviewable’…. Ryan v.

Astrue, No. 5:09cv55, 2011 WL 541125, at *3 (N.D. W.Va. Feb. 8,

2011). If the ALJ meets … her basic duty of explanation, then ‘an

ALJ’s credibility determination [will be reversed] only if the

claimant can show [that] it was ‘patently wrong.’” Criss, 2017 WL

2730647, at *3(alteration in original)(citations omitted)(quoting

Sencindiver v. Astrue, No. 3:08-cv-178, 2010 WL 446174, at *33 (N.D.

W.Va. Feb. 3, 2010)).

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While Plaintiff’s argument and objection ignores the evidence

of work performed by him and his own statements regarding the same,

the regulations are clear that evidence of work performed by a

claimant may be used in assessing the claimant’s credibility. 20

C.F.R. § 416.971 (“The work, without regard to legality, that you

have done during any period in which you believe you are disabled

may show that you are able to work at the substantial gainful

activity level.”); see also Sue E. v. Berryhill, No. 6:17-cv-46,

2018 WL 434835, at *4 (W.D. Va. Aug. 15, 2018)(“Evidence of work

during the relevant period is a legitimate factor the ALJ may

consider when determining the consistency of a claimant’s subjective

claims of disability.”); Lafferty v. Colvin, NO. 4:13-cv-49, 2015 WL

156772, at *17 (W.D. Va. Jan. 13, 2015)(“The ALJ may consider the

applicant’s recent work as he would any other evidence that is

relevant to her credibility.”). “[I]t is the ALJ’s duty, not this

Court’s, to determine the facts and resolve inconsistencies between

a claimant’s alleged impairments and his ability to work.” Redditt

v. Colvin, No. 7:13-cv-391, 2014 Wl 2800820, at *6 (W.D. Va. June

18, 2014).

The record in this matter reflects that that ALJ appropriately

weighed, considered and explained the inconsistencies in Plaintiff’s

work history [Dkt. No. 13-2 at 18-21], and the basis for his

conclusion that Plaintiff was not a consistent or reliable informant

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with regard to detailing the actual extent of his historical or

ongoing work activity [Id. at 19-20]. The records support the

finding that Plaintiff’s condition and functionality remained

relatively stable with medication prior to his surgery in October

2016, and that his symptoms resolved after surgery [Id. at 18-19].

As noted by the ALJ, the records show that after surgery, Plaintiff

had actually returned to work, had been carrying on normal

activities, and even “reported significant improvement in his

symptoms to Dr. Lheureau as of December 1, 2016” [Id. at 19-20].

The magistrate judge correctly observed that Plaintiff does not point

to “any objective evidence in the record that supports his subjective

complaints that (1) his pain is so severe he cannot do anything

around the house seven to ten days per month and (2) he needs to use

the bathroom ten to fifteen times per day for ten for [sic] thirty

minutes each time” [Dkt. No. 20; Dkt. No. 16-1, at 6, 12-13]. While

the decision does not specifically address Plaintiff’s subjective

complaints presented at hearing [Dkt. No. 13-4 at 120, 124-25], the

ALJ considered the entire record and provided substantial evidence

to support his determination of Plaintiff’s credibility [Dkt. No.

13-2 at 18-21].

The Plaintiff takes issue with the ALJ’s ultimate conclusion

that his subjective complaints of symptoms were inconsistent with

the evidence of record [Dkt. No. 21 at 7]. However, the magistrate

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judge concluded that the ALJ properly considered all of the evidence

of record when he concluded that Plaintiff’s assertions concerning

the intensity, duration, and limiting effects of his symptoms were

not fully persuasive [Dkt. No. 20 at 19]. This Court finds no error

in the above determination of the magistrate judge, and upholds his

recommendation. Plaintiff’s objection in this regard is overruled.

IV. CONCLUSION

Upon careful review of the Report and Recommendation [Dkt. No.

20], and for the reasons stated, the Court ORDERS:

(1) That the Report and Recommendation [Dkt. No. 20] be AFFIRMED

and ADOPTED for the reasons more fully set forth therein;

(2) That Plaintiff’s Objections [Dkt. No. 21] are OVERRULED;

(3) That Plaintiff’s Motion for Summary Judgment [Dkt. No. 16]

is DENIED;

(4) That Defendant’s Motion for Summary Judgment [Dkt. No. 17]

is GRANTED;

(5) That Plaintiff’s Complaint [Dkt. No. 1] be, and it hereby

is, DENIED and DISMISSED WITH PREJUDICE; and

(6) That this matter be STRICKEN from the active docket of this

Court.

The Court further DIRECTS the Clerk to enter judgment in favor

of Defendant.

It is so ORDERED.

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The Clerk is directed to transmit copies of this Order to all

counsel of record herein.

DATED: September 19, 2019

/s/ Thomas S. Kleeh________

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE

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